Given the increased national attention to the use of the Clean Air Act to address climate change, an analysis of the origins of the Clean Air Act is instructive for understanding the law in its current form. Contrary to the traditional view, the formation of the Clean Air Act was not the result of the events of the Year of the Environment, but rather, the gradual evolution of a federal regulatory approach to the medium of air between 1955 and 1970. Far from being weak and ineffectual, the federal air pollution laws of 1955, 1963, 1965, and 1967 laid the legal and conceptual framework for the modern Clean Air Act.

Saturday, May 30, 2015

At a time when the New Zealand Government is proposing significant changes to New Zealand’s key environmental protection statute the Resource Management Act 1991, one of the architects traces the Act’s origin and history. The Act is based on the principle of sustainable management articulated in the report of the World Commission on Environment and Development in 1987. This chapter in a book analyses the forces that led to the enactment, particularly the National Development Act 1979. It also canvases weaknesses in the administration of the Act and critiques the Government’s proposals for reform.

Camping began in the nineteenth century as an elite form of pilgrimage to the wild, but the arrival of inexpensive automobiles in the early twentieth century greatly expanded camping's social diversity. The change was not universally embraced, especially when African Americans were involved, and the issue came to a head during the 1930s after two racially segregated national parks were opened in southern states. As complaints flowed in, William J. Trent, Jr., became adviser for Negro affairs to Interior Secretary Harold L. Ickes. He had no special interest in the outdoors or national parks, but Trent championed increased African American access to the parks and an end to discrimination in them. NPS leadership resisted Trent's efforts until Secretary Ickes ordered them to create one nonsegregated demonstration area in Shenandoah National Park in 1939. The policy was extended to other areas in 1941 and the next year, with World War II shifting into high gear, campground and other forms of segregation were ended throughout the park system.

Thursday, May 28, 2015

Hirt does four things in this volume. First, she lays out the essentials of American zoning and planning without getting lost in the details. Second, she makes the comparative case for the uniqueness of the United States in terms of its degree of spatial homogeneity and protection of the idealized single-family, detached house. Third, she gives a quick tour of the history of spatial separation in cities and especially the rise of urban planning in Europe, before returning to the deep roots of "exclusive domesticity" in America ideology from the colonial era onward. Finally, she provides a fine, brief history of the establishment of deed covenants and municipal zoning in the US case.

The essence of Hirt's analysis is that American zoning is distinct from all other national planning practices, and that it is so because the spatial order of American society and cities is unique. In this, history matters in showing the depth of American ideas and permanence of US practices concerning what Hirt calls "spatial individualism": freedom conceived geographically as isolation and elbow room. Frederick Jackson Turner goes to town, as it were. Along with this came a uniquely American preference for the single-family, detached house, which dominates urban space and legal practice as in no other country. Hirt certainly recognizes the importance of separating noxious uses from domestic tranquility as the foundation for zoning, but she is nicely attuned to two other things vital to spatial freedom in the American sense: freedom from having to mingle with the lower classes and races and freedom to profit from property development by keeping government at bay except to minimize uncertainty and risk. The desire for spacious, single-family housing segregated by class, race, and function was deeply ingrained in popular bourgeois culture.

One thing I particularly like in Hirt's historical approach is that, unlike almost all other treatments of zoning and spatial segregation in American cities, this one does not begin after World War Two and does not put the bulk of the blame on the federal government's mortgage policies. The New Deal simply put federal muscle and money behind what was already standard practice locked into the fabric of urbanization by the real estate industry and Herbert Hoover in the 1920s. As is so often the case in the United States, government policy and business interests went forth hand in hand to build cities profitably.

In her discussion of the surprising flimsiness of MSY as a scientific concept, Finlay points to the “scientific racism” beneath the attitudes of the American public officials and scientists concerned with fisheries regulation at mid-century. They long held the notion, or even truism as it were, that Japanese fish science was at best woefully lacking by Western standards of scientific rigor, and at worst nonexistent. In fact, Finley argues, Japan, because of its dependence on marine living resources, had a long and venerable history of studying fish stocks and their husbandry going back to the industrialization of the nation’s inshore and coastal fisheries in the nineteenth century. Japan was also a respected source of knowledge in the inchoate fish science sought by other nations from the 1930s on, including the United States…. Works by historians of Japanese fisheries such as Yoshitaka Takahashi attest that Finley is right: Japan had indeed developed a sophisticated administrative system of fisheries management based on systematic accumulation of data even before Japan was “forced open” by Commodore Matthew Perry and famously exposed to the benefits of Western science and technology. Another interesting point Finley makes about various iterations of American racism or ethnocentrism tainting the views of American scientists and practitioners is that the United States vilified the efforts by Central American coastal nations such as Ecuador and Peru to curb American bait fishing off their shores as an attempt to extract a “tribute” from US fishermen, and they refused to regard such control as a legitimate administrative prerogative exercised by sovereign states on a par with the United States.

In the summer of 1978, Robert Burns and his two sons drove liquid tanker trucks along rural roads in thirteen North Carolina counties and through remote sections of the Fort Bragg Military Reservation. Driving at night to avoid detection, they opened the bottom valve of the tanker and discharged liquid contaminated with polychlorinated biphenyls (PCBs) removed from the Ward Transformer Company in Raleigh onto the soil along the road shoulders. This violation of the Toxic Substance Control Act (TSCA) continued for nearly two weeks until 240 miles of road shoulders were contaminated. Robert Ward had hired the Burnses to illegally dispose of the contaminated liquid in an attempt to avoid the escalating cost of disposal that was due, in part, to increasing regulation of hazardous waste. Since the contamination occurred on state-owned property, North Carolina was responsible for remediation. Within a few months after detecting the contamination, the state devised a plan calling for the construction of a landfill in Warren County, a rural area in northeastern North Carolina with a majority of poor, African-American residents. Warren County also suffered the most contamination of any of the thirteen counties effected by the illegal disposal. A farmer in the small community of Afton, facing a foreclosure and bankruptcy, sold his property to the state for use as a final resting place for the contaminated soil.

The article goes on to discuss the Warren County protests and the foundation of the environmental justice movement.

Drawing on evidence from seventeenth and eighteenth century Islamic legal sources in Ottoman Syria, the paper examines the laws governing the use and management of natural resources, particularly for agricultural production. Islamic jurists played a key role in mediating the state's relationship with local populations and legitimising local practices and customs that governed land and water use. Often, this translated into laws which prioritised protecting the public good while not necessarily challenging existing power structures. The paper also explains how pious endowments (waqfs) were integral to the management of land and water resources in Ottoman Syria. The study sheds light on indigenous narratives regarding the environment and how Islamic law adapted to social and economic circumstances on the ground. Ultimately, the law contributed to ensuring the socio-cultural sustainability of ‘management’ strategies implemented by local populations vis à vis the environment.

This article tells the epic tale of the fall and rise of Mono Lake — the strange and beautiful Dead Sea of California — which fostered some of the most important environmental law developments of the last century, and which has become a platform for some of the most potentially important developments in the new century. It shares the backstory and legacy of the California Supreme Court’s famous decision in National Audubon Society v. Superior Court, 658 P.2d 709 (Cal. 1983), known more widely as “the Mono Lake case.” Inspired by innovative legal scholarship and advocacy, the decision spawned a quiet legal revolution in public trust ideals, which has redounded to other states and even nations as far distant as India.

The Mono Lake dispute pitted advocates for the local ecosystem and community against proponents of the continued export of Mono Basin water to millions of thirsty Californians hundreds of miles to the south. The controversy itself spanned decades, but the story leading up to the litigation stretches back more than a hundred years, adding depth and dimension to the tale that is easily missed on a casual reading of the Audubon Society decision itself. It is a case study on the challenges and possibilities for balancing legitimate needs for public infrastructure and economic development with competing environmental values, all within systems of law that are still evolving to manage these conflicts. And at this particular moment in time, commemorating the hundredth anniversary of the Los Angeles Aqueduct that would threaten the lake and the twentieth anniversary of the State Water Board’s ultimate decision to save it, the Mono Lake story is especially worth revisiting.

As Shoup observed — and more importantly, proved — land use regulations requiring massive amounts of free parking helped create sprawling urban form as well as incentivizing reliance on the automobile....

But isn’t that what the market was demanding? No, Shoup argued. Although an economist by training, Shoup became an ersatz historian, and demonstrated that most zoning codes’ parking requirements came from model codes in the 1920’s and had absolutely no empirical basis to them. Then urban planners just copied them, because that was easier. Shoup loves to compare the “science” of parking requirements to phrenology, and he’s right.

This article explores a long-standing discursive tradition within international nature conservation. In this tradition the argument is made that “primitive” people should be allowed to live in the areas the conservationists deem as “pristine” or “natural.” The article explores the (changing) relative importance of this tradition in the conservation discourse as a whole, and analyzes the shifting composition of its argumentative arsenal from the 1910s to the 1970s. Particular attention goes to the uneasy combination of two types of argument: one in which indigenous people are presented as part of nature, another in which their customary rights are stressed.

Friday, May 8, 2015

A new lawsuit, filed by conservationists on the 177th anniversary of John Muir’s birth, asserts that the City of San Francisco’s continued operation of O’Shaughnessy Dam and Hetch Hetchy Reservoir on the Tuolumne River within the Park violates Article X, section 2 of the California Constitution. Specifically, Restore Hetch Hetchy, the organization that brought the lawsuit against San Francisco, claims that continued maintenance of the dam and reservoir in one of Yosemite’s most spectacular areas, constitutes an “unreasonable method of diversion” of water that violates state constitutional standards.

The 1913 federal Raker Act "authorized the City of San Francisco to build a dam across the Tuolumne River that would flood the Hetch Hetchy Valley in Yosemite National Park in order to deliver water supplies to San Francisco residents and businesses."

Hetch Hetchy Valley in Early 1900’s, Before Valley’s Inundation

Passage of the Raker Act marked the greatest political defeat of John Muir, America’s most famous conservationist and founder of the Sierra Club. Some historians and biographers go so far as to attribute Muir’s death in 1914 to his heartbreak over Muir’s inability to keep his beloved Hetch Hetchy Valley from being flooded.

Fast forward to 2015. Bay area businesses and residents have for a century enjoyed the cheap water provided by the dam and reservoir that have inundated the Hetch Hetchy Valley. At the same time, no one today would seriously propose the flooding of a key part of one of America’s most famous and revered national parks for such offsite uses. That’s especially true when studies show that San Francisco can fully meet its water demands through relatively modest modifications to the much larger New Don Pedro Dam and reservoir downstream on the Tuolumne–outside Yosemite’s boundaries.

In sum, Restore Hetch Hetchy’s lawsuit provides a welcome forum for a long-overdue debate over whether O’Shaughnessy Dam and Hetch Hetchy Reservoir should be removed from Yosemite and the Hetch Hetchy Valley restored to its original splendor and ecological health. (Muir and others of his generation observed that the Hetch Hetchy Valley was an equally-stunning counterpart to Yosemite Valley, located just to the southeast and the most heavily-visited portion of Yosemite National Park.)

Wednesday, May 6, 2015

Environmental History recently posted a "virtual issue" on "Race, Justice, and Civil Rights", in which they republish some previously published pieces from the journal. First up is Martin Melosi's "Equity, Eco-racism and Environmental History", originally published in 1995. Melosi surveys the then-young environmental justice movement in the US, its points of departure from the mainline environmental movement, and its implications for the writing of environmental history. Melosi writes:

Aside from the intrinsic importance of race as an issue for further inquiry, the current public debate over questions of environmental equity, environmental justice, and eco-racism are changing the focus of the environmental discourse in the United States and in other parts of the world. Just as the environmental movement of the 1960s and 1970s helped to shape the burgeoning field of environmental history, the current public dialogue over equity and environmental justice ultimately may have a similar impact.

It's interesting to thing about to what extent that has indeed happened, and also how different American environmental history writing is from American legal history writing in this respect.

Melosi goes on:

The Environmental Justice Movement, because of its controversial stances on race, class, and the environment, and its skepticism about the goals and objectives of mainstream environmentalism, is playing a historic role in reintroducing "equity" into the public and academic debate over environmental policy. Equity, however, has been transformed into "environmental justice," with a particular focus on the traditional American underside caught beneath the wheels of an avaricious economy. From the historian's vantage point, this is but one aspect of a larger issue-an issue already addressed broadly by philosophers, as well as by social scientists-especially sociologists and economists-concerned mainly with distributional effects.

Sunday, May 3, 2015

John Echeverria's Takings Litigation blog recently (April 24) covered a surprising development in arguments before the US Supreme Court:

Who could have imagined that the takings case of Horne v Department of Agriculture argued in the Supreme Court this past Wednesday might portend revival of the doctrine of public trust ownership of wildlife? But it might. Really.

The Horne case has to do with whether a federal program forcing raisin growers to turn over a portion of their crop to the government is a "taking", constitutionally requiring compensation. Echevarria explains how the public trust comes into this:

The dramatic surprise in the oral argument on Wednesday came during the discussion of the 1929 chestnut of Leonard v. Earle, a Supreme Court precedent with an uncanny resemblance to the Horne case. The case involved a takings claim based on a Maryland statute that required oyster “packers” to turn over to the State of Maryland, once the oysters had been shucked, 10% of the empty shells. The shells, though surely not as valuable as the innards, had value for roadmaking, as fertilizers, and as animal feed. The State’s purpose in procuring the shells was to arrest the “rapid exhaustion” of Maryland’s oyster beds by using the spent shells to build the depleted beds back up and provide a substrate on which young oysters could grow. In response to the argument that the statute amounted to a taking, Justice McReynolds wrote:

“From the packer’s standpoint, empty shells are but ordinary articles of commerce, desirable because convertible into money. Their value is not large, and the part taken by the state will be so used as greatly to advantage the business of packing. The purpose in view is highly beneficent, and the means adopted are neither arbitrary nor oppressive. The federal Constitution may not be so successfully invoked by selfish packers who seek to escape an entirely reasonable contribution, and thereby to thwart a great conservation measure generally approved.”

Views on environmental issues are related to broader culture differences. According to social scientists, environmentalists tend to be egalitarian, believe in harmony with nature, and stress responsibility over autonomy. Their opponents, who are skeptical about regulation, tend to favor traditional hierarchies, believe in human mastery of nature, and stress autonomy over responsibility. Jon Cannon’s new book, Environment in the Balance, extends this theory to the Supreme Court, with illuminating results.

Farber goes on to explain how Cannon's book shows how this cultural divide has played out in the US Supreme Court with regard to a couple of legal issues.

From the publisher's website:

Jonathan Z. Cannon demonstrates that from the 1960s onward, the Court’s rulings on such legal issues as federalism, landowners’ rights, standing, and the scope of regulatory authority have reflected deep-seated cultural differences brought out by the mass movement to protect the environment. In the early years, environmentalists won some important victories, such as the Supreme Court’s 1973 decision allowing them to sue against barriers to recycling. But over time the Court has become more skeptical of their claims and more solicitous of values embodied in private property rights, technological mastery and economic growth, and limited government.

Friday, May 1, 2015

My friend Richard Laster recently brought to my attention Barbara Lausche's Weaving a Web of International Law (IUCN/ICEL, 2008, fully available online), a history of the International Union for the Conservation of Nature's Environmental Law Programme.

The book traces the program's origins back to pre-war Switzerland and the Netherlands, but things really picked up just after World War II, including efforts in the 1950s to advance a World Charter for Nature inspired by the Universal Declaration on the Rights of Man. The organization was influential in the creation of several environmental treaties, as well as in advancing domestic legislation around the world.

Though it aims only to tell the story of one organization, it seems to me the larger significance of the book in the historiographical landscape is that it shifts attention from both internal-doctrinal factors and (domestic) external-social/political/cultural ones that are usually marshaled to explain the evolution of environmental law, (back) to the realm of institutions and especially international experts, and their role in shaping environmental law across jurisdictions and on a global scale.